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Executive Power Questions To Persist

On June 20, President Bush asserted executive privilege to shut down a House probe into an Environmental Protection Agency rule making. Three days later, a federal judge heard arguments in the Democrats’ groundbreaking lawsuit over subpoenas for White House aides.

On Thursday, Vice President Cheney’s top aide tussled with House members who wanted to know about the role the White House played in approving harsh interrogation tactics. On Friday, the House Judiciary Committee issued subpoenas to the Justice Department for notes from interviews with Bush and Cheney.

And on July 10, Karl Rove faces a deadline for responding to a subpoena to testify on the “politicization” of the Justice Department.

Clashes over executive power have been a staple of the past eight years. They won’t go away when the next president takes office.

But the senator who succeeds Bush in the White House will have a difficult choice to make: to continue the Bush-Cheney effort to reverse the “erosion” of presidential power that began in the wake of Watergate or, instead, to seek a more cooperative working relationship with the legislative branch.

Both Barack Obama and John McCain have pledged more “openness and transparency” if elected, but either candidate could see things differently once he’s ensconced at the other end of Pennsylvania Avenue. And for McCain — who faces the prospect of an even larger Democratic majority on Capitol Hill — it might prove particularly difficult to cede some of the constitutional prerogatives claimed by Bush and Cheney over the past eight years.

“If the president and the Congress are controlled by the same party, a lot of this stuff gets worked out behind the scenes,” one former Bush White House official, who did not want to be named, said, referring to the period from 2002 to 2006 when Republicans controlled both the Oval Office and Congress. “If we have a president and Congress from different parties, you can expect to see a lot of fireworks.”

Obama has been more forthcoming than McCain on his specific views of presidential power and its limits, although his comments, as well as those of his aides, still allow for a lot of wiggle room.

When Obama was asked last month about the Bush administration’s argument that senior White House aides enjoy “absolute immunity” from congressional subpoenas — meaning they don’t have to respond to them at all, not even to assert “executive privilege” — the candidate said that such a view is “completely misguided” when “there’s evidence of genuine wrongdoing.”

If “genuine wrongdoing” means any sort of improper behavior, then Obama’s standard would suggest a greater level of cooperation with Congress than the Bush administration has shown. But if Obama’s “genuine wrongdoing” means only behavior that rises to the level of criminal, then his position is similar to the one the Bush administration has cited in defending against House Democrats’ lawsuit over the subpoenas served on White House chief of staff Josh Bolten and former White House counsel Harriet Miers.

Obama, a Harvard Law School graduate who taught a constitutional law course at the University of Chicago, has publicly criticized Bush’s frequent use of signing statements as a sort of quasi-line-item veto on bills he signs.

However, the Democratic presidential hopeful has reserved the right to issue such signing statements as president if he decides it’s necessary to do so. “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives,” Obama told The Washington Post earlier this year.

McCain, by contrast, has said that he would never issue signing statements excusing himself from the obligation to enforce certain parts of abill. “Never, never, never, never,” McCain told the Post earlier this year. “If I disagree with a law that passed, I’ll veto it.”

Still, Obama’s aides insist that he would approach Congress very differently than Bush has, relying on openness and conciliation rather than secrecy and confrontation.

“If he were elected president, his inclination would be to be much more transparent than this particular White House has been,” said Greg Craig, a senior adviser to the Obama campaign.

As an example, Craig said the secrecy surrounding Cheney’s energy task force “is not in Obama’s DNA,” and that the Illinois Democrat would never go to such lengths — in Cheney’s case, a Supreme Court fight — to prevent the American people from learning the identities of people with whom their leaders have been meeting. “I think [Obama] would say this administration has been insensitive to the appropriate role that the Constitution gives to the other branches of government,” Craig said. “It may be that they believe they have these special powers because of 9/11, because of the war powers provisions in the Constitution. Sen. Obama’s critique would be that they show a lack of due deference. They do not pay adequate deference to either the House or Senate.”

The McCain campaign did not respond to repeated requests for comment. But a search of the public record shows that McCain’s views on presidential power have been somewhat inconsistent — and that he has not laid out a philosophic approach to the issue that would provide a basis for fair predictions.

McCain opposes congressional earmarks and supports the line-item veto — positions that, if put into practice, would increase the authority of the Oval Office in annual budget fights with Capitol Hill. McCain has also vehemently opposed any congressional efforts to limit Bush’s authority to conduct the Iraq war.

But like Obama, the Arizona Republican has pledged that Washington will see a new era of openness if he’s elected in November. He has even gone so far as to suggest that the president himself should go before Congress to answer questions from lawmakers, “much the same as the prime minister of Great Britain appears regularly before the House of Commons.”

Citing his time as a prison of war in Vietnam, McCain has opposed the use of torture against detainees. But he reversed course earlier this year and refused to support legislation that would have banned the practice by any executive branch agency, including the CIA.

McCain said in a May 6 speech that the constitutional balance between the three branches must be maintained at all times, no matter what challenges the country faces.

“For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions,” McCain declared. “They are not just guidelines to be observed when it’s convenient and loosely interpreted when it isn’t.”

But in the same speech, McCain railed against “judicial activism,” a common theme for conservatives, and said that as president, his goal would be to “restore humility to the federal courts” by appointing judges “immune to flattery and fashionable theory and faithful in all things to the Constitution of the United States.”

McCain has not taken a public position on the Democratic lawsuit to enforce the subpoenas against Bolten and Miers. A campaign aide, declining to offer any specific view, told The Associated Press that the subpoena battle was “a complicated and fact-specific constitutional issue.” The spokesman suggested McCain would, as president, work with Congress to prevent such disputes.

Even some Democrats concede that a McCain White House would likely work better with Congress than the Bush WhiteHouse has — in part because McCain has served in Congress, and in part because Democrats have a difficulty imagining a White House more resistant to congressional prerogatives than this one has been.“I think a McCain administration would recognize the supremacy of the Constitution and the importance of checks and balances,” said Rep. Henry A. Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. “Of course, both [candidates] are going to have to deal with a Congress a lot more active on oversight.”